Eric Bachman interviewed about combatting sexual harassment at work and negotiating severance packages

Eric Bachman interviewed about combatting sexual harassment at work and negotiating severance packages

Glass Ceiling Discrimination Blog provides updates and unique analysis about promotion discrimination, sexual harassment, and employment law. It is written by the team of employment lawyers at Zuckerman Law and edited by Eric Bachman, Chair of the Firm's discrimination and retaliation practice.

A helpful new resource for employees, Simone, is designed to empower women to build successful professional lives. The founders of Simone spoke with Eric Bachman about best practices in navigating difficult legal situations at work. The full interview is here and below are some highlights:

Simone: Eric, many of the people we’ve spoken to have had questions about when and how an employment lawyer can be useful. There’s a misconception that employment lawyers may only be necessary if someone wants to litigate severe harassment issues.

But as we know from personal experience, there are many different considerations when helping someone separate from an employer. Can you walk us through a few instances where people could seek employment counsel, but not litigate?

Eric: There are a range of scenarios where it helps to work with a lawyer, even if you’re not intending to litigate a case in court. If the workplace culture is becoming unbearable, and the employee is fed up and wants to negotiate an exit, it is common to enlist the help of a lawyer to get the best deal possible.

Sometimes, the employee wants to stay at the company. So they need to talk to a lawyer about how to register a complaint properly, and how to deal with potential retaliation from filing that complaint.
Sometimes, the employee wants to stay at the company. So they need to talk to a lawyer about how to register a complaint properly, and how to deal with potential retaliation from filing that complaint.

Finally, there are people who just want to get guidance and know what their options are. Is what they’re experiencing sexual harassment or discrimination — or is it rude and obnoxious behavior? Sometimes what they are experiencing may be uncomfortable, but not illegal.

A lot of factors need to be considered in the negotiations, including lost pay, potential harm to their professional reputation, and emotional distress damages.

Simone: So then what happens when the employee wants to stay, but the company doesn’t take them seriously?

Eric: At that point, negotiations often switch to finding the best exit package for that employee because they see the employer won’t address the problem. A lot of factors need to be considered in the negotiations, including lost pay, potential harm to their professional reputation, and emotional distress damages.

It is critical to review the evidence and documentation the employee has kept. The employee should keep notes of different instances of exclusion, harassment, and toxicity. Were there any witnesses around that heard that sexist joke? Is it explicit that you were expected to go out on a date with someone to help your career? Do you have examples of male colleagues receiving different or preferential treatment?

When it comes to harassment, texts and emails are important to preserve. Employees should also lay out all the facts to the attorney, both good and bad. If, for example, you were working on a project and things just went really poorly, it’s not a great fact, but it’s something your attorney needs to know, so they can give you sound legal advice. Same with good work — make sure you track evidence of all of that.

It’s really important to be as credible as possible when having these negotiations. You don’t want to exaggerate what has happened to you.

Simone: What is the best way to go about approaching severance? What are the stipulations that everyone should ask for in their agreement when they part (in a not so amicable way) from their companies? What facts from the work environment and individual experience should be included in a severance negotiation to ensure a great leaving package?

Eric: Often in the settlement agreements, there will be a few provisions that are really common, so you should be prepared to know them.

One of those provisions is a non-disparagement clause. If the employer wants a non-disparagement clause, one approach is to ensure that everything is mutual. For example, if the employee is agreeing not to disparage the company, then the company needs to also agree not to disparage the employee.

There is also often a pretty severe penalty if an employee violates the agreement. The penalty for a violation should be the same for both the employer and employee.

Simone: We get the sense that it’s confusing for many people to decipher what might be a solvable or normal workplace conflict, and what might be actually discrimination or harassment. How should people evaluate their workplace problems? Once they’ve identified the problem, and have decided they want to leave, how would you advise broaching the subject with the employer and negotiating an exit package?

Eric: This is one of the most hotly contested areas in courts and in settlement negotiations — what constitutes a legal hostile work environment or sexual harassment? There are some blatant examples, like groping or quid-pro-quo scenarios. There are also more subtle but just as toxic incidents, like routine sexist jokes, porn on computers that’s being sent around, or a “boy’s club” of social situations where only men are invited. Consistent comments about someone’s appearance or body are also considered discriminatory.

When you get into the more subtle conduct, you need to show that these jokes are based on someone’s sex or gender, and that this has happened regularly. The courts assume that there are obnoxious colleagues or horrible bosses. For example, a horrible boss who treats everyone badly represents a toxic environment — but not necessarily sexual harassment or gender discrimination.

A few off-handed remarks or very infrequent off-color jokes (referred to as a “stray remark”) are also not enough to prove discrimination. But if the situation is pervasive and frequent, and the employee is consistently experiencing exclusion, bad assignments, or sexist jokes, then they have a case.

Simone: Finally: what do you love about what you do? This isn’t always the easiest line of work. Do you have examples of what it is that gets you up in the morning?

Eric: For me, first and foremost, it’s the opportunity to help people who are at the lowest point of their lives, or at the lowest point of their professional lives. Many times, I’m talking to people who have been at their jobs for years or love their jobs and out of the blue they are demoted or fired. And that experience just sets them back on their heels and really destroys their world.

From a legal perspective, I enjoy the David and Goliath aspect of the job. These are hard cases to win, and we are going up against big companies and great lawyers. But I like the challenge.

I just finished up a jury trial for a client who has been fighting her case for the last four years. She experienced incredible vindication after getting an unanimous jury vote confirming that yes, she would have been able to achieve all of these things had she not been in a discriminatory environment. That psychological value is just huge. To be able to help begin that healing process is to me one of the great gifts of the job and always has been.

Simone: That’s amazing, thank you Eric for everything you do!

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About the author

Eric Bachman litigates employment discrimination, including "glass ceiling," claims as well as whistleblower retaliation cases. He is Chair of the discrimination and retaliation Practices at Zuckerman Law. Previously, Bachman served as Special Litigation Counsel with the U.S. Department of Justice’s Civil Rights Division, and Deputy Special Counsel for Litigation and Legal Affairs with the U.S. Office of Special Counsel.

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